China Life Insurance Company v. Baby Trend, Inc.
Filing
46
PROTECTIVE ORDER - Upon consideration of the parties' joint request for entry of a Protective Order, (Filing No. 44 ), the Court enters the following Protective Order governing the disclosure of confidential Discovery Material by a Producing Party to a Receiving Party in this Action. Ordered by Magistrate Judge Michael D. Nelson. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHINA LIFE INSURANCE COMPANY, as
assignee of LERADO GROUP CO.,
LTD.; LERADO GROUP (HOLDING)
COMPANY LTD.; LERADO (ZHONG
SHAN) INDUSTRIAL CO., LTD.;
LERADO CHINA LIMITED; and
LERADO H.K. LIMITED;
8:18CV213
PROTECTIVE ORDER
Plaintiff/Counter-Defendant,
vs.
BABY TREND, INC.,
Defendant/Counter-Claimant.
Upon consideration of the parties’ joint request for entry of a Protective Order, (Filing No.
44), the Court enters the following Protective Order governing the disclosure of confidential
Discovery Material by a Producing Party to a Receiving Party in this Action.
1)
Definitions. As used in this Order:
a. Action refers to the above-captioned litigation.
b. Discovery Material includes all information exchanged between the parties, whether
gathered through informal requests or communications between the parties or their
counsel, or gathered through formal discovery conducted pursuant to Rules 30
through 36, and Rule 45. Discovery Material includes information within documents,
depositions, deposition exhibits, and other written, recorded, computerized,
electronic or graphic matter, copies, and excerpts or summaries of documents
disclosed as required under Rule 26(a).
c. A Producing Party is a party to this litigation, or a non-party either acting on a party’s
behalf or responding to discovery pursuant to a Rule 45 subpoena, that produces
Discovery Material in this Action.
d. A Receiving Party is a party to this litigation that receives Discovery Material from
a Producing Party in this Action.
2)
Confidential Discovery Material. This Protective Order applies to all confidential
Discovery Material produced or obtained in this case. For the purposes of this Protective Order,
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confidential Discovery Material shall include:
a. Commercial information relating to any party’s business including, but not limited
to, tax data, financial information, financial or business plans or projections,
proposed strategic transactions or other business combinations, internal audit
practices, procedures, and outcomes, trade secrets or other commercially sensitive
business or technical information, proprietary business and marketing plans and
strategies, studies or analyses by internal or outside experts, competitive analyses,
customer or prospective customer lists and information, profit/loss information,
product or service pricing or billing agreements or guidelines, and/or confidential
project-related information;
b. Personnel data of the parties or their employees, including but not limited to
employment application information; the identity of and information received from
employment references; wage and income information; benefits information;
employee evaluations; medical evaluation and treatment information and records;
counseling or mental health records; educational records; and employment
counseling, discipline, or performance improvement documentation;
c. Information concerning settlement discussions and mediation, including demands or
offers, arising from a dispute between a party and a non-party;
d. Medical or mental health information;
e. Records restricted or prohibited from disclosure by statute; and
f. Any information copied or extracted from the previously described materials,
including all excerpts, summaries, or compilations of this information or testimony,
and documentation of questioning, statements, conversations, or presentations that
might reveal the information contained within the underlying confidential Discovery
Material.
3)
Manner of Confidential Designation. A Producing Party shall affix a
“CONFIDENTIAL” designation to any confidential Discovery Material produced in this Action.
a. As to documentary information (defined to include paper or electronic documents,
but not transcripts of depositions or other pretrial or trial proceedings), the Producing
Party must affix the legend “CONFIDENTIAL” to each page that contains protected
material.
b. If only a portion or portions of the information on a document page qualifies for
protection, the Producing Party must clearly identify the protected portion(s) (e.g.,
by using highlighting, underlining, or appropriate markings in the margins).
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c. If it is not feasible to label confidential Discovery Material as “CONFIDENTIAL,”
the Producing Party shall indicate via cover letter or otherwise at the time of
production that the material being produced is CONFIDENTIAL.
Counsel for a disclosing party may further designate confidential Discovery Material as
CONFIDENTIAL--ATTORNEYS' EYES ONLY if such counsel concludes in good faith that the
material is or contains non-public information that is highly sensitive proprietary information
including, but not limited to, trade secrets, privileged information, or nonpublic technical, financial,
personal or business information. Discovery Material designated as CONFIDENTIAL - FOR
ATTORNEYS’ EYES ONLY means any document which bears the legend CONFIDENTIAL FOR ATTORNEYS’ EYES ONLY or, if it is not feasible to label the Discovery Material, which
the producing party indicates via cover letter or otherwise at the time of production as
CONFIDENTIAL - FOR ATTORNEYS’ EYES ONLY.
4)
Timing of Confidential Designation.
a. Except as otherwise stipulated or ordered, or where discovery is made available for
inspection before it is formally disclosed, Discovery Material that qualifies for
protection under this Order must be clearly so designated before the material is
disclosed or produced.
b. If the Producing Party responds to discovery by making Discovery Material available
for inspection, the Producing Party need not affix confidential designations until after
the Receiving Party has selected the material it wants to receive. During the
inspection and before the designation, all material made available for inspection is
deemed “CONFIDENTIAL.” After the Receiving Party has identified the Discovery
Material it wants produced, the Producing Party must determine which materials, or
portions thereof, qualify for protection under this Order, and designate the materials
as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY as
required under this order.
5)
Qualified Recipients. For the purposes of this Protective Order, the persons authorized
to receive confidential Discovery Material (hereinafter “Qualified Recipient”) are:
For information designated as CONFIDENTIAL:
a. The Parties, including any members, council members, officers, board members,
directors, employees, or other legal representatives of the parties;
b. Legal counsel representing the parties, and members of the paralegal, secretarial, or
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clerical staff who are employed by, retained by, or assisting such counsel; including
vendors who are retained to copy documents or electronic files, provide technical,
litigation support, or mock trial services, or provide messenger or other
administrative support services;
c. Any non-expert witness during any deposition or other proceeding in this Action, and
counsel for that witness;
d. Potential witnesses and their counsel, but only to the extent reasonably related to the
anticipated subject matter of the potential witness’s deposition, trial, or hearing
testimony for this Action, so long as such persons agree to maintain the confidential
Discovery Material in confidence per the terms of this Order, and provided that such
persons may only be shown copies of confidential Discovery Material and may not
retain any such material;
e. Consulting or testifying expert witnesses who will be providing professional opinions
or assistance for this Action based upon a review of the CONFIDENTIAL
information, and the staff and assistants employed by the consulting or testifying
experts;
f. Any mediator or arbitrator retained by the parties to assist with resolving and/or
settling the claims of this Action and members of the arbitrator’s or mediator’s staff
and assistants;
g. The parties’ insurers for this Action, and their staff and assistants, members, officers,
board members, directors or other legal representatives;
h. Court reporters for depositions taken in this Action, including persons operating
video recording equipment and persons preparing transcripts of testimony;
i. The court and its staff, any court reporter or typist recording or transcribing hearings
and testimony, and jurors; and
j. Any auditor or regulator of a party entitled to review the confidential Discovery
Material due to contractual rights or obligations, or federal or state laws, or court
orders, but solely for such contractual or legal purposes.
For information designated as “CONFIDENTIAL INFORMATION-ATTORNEYS’ EYES
ONLY”:
a. Legal counsel representing the Receiving Parties, and members of the paralegal,
secretarial, or clerical staff who are employed by, retained by, or assisting such
counsel;
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b. Consulting or testifying experts for the Receiving Party, defined to include only those
experts retained or employed to assist the Receiving party in preparing for trial or
any other proceeding in the Action and who need access to the CONFIDENTIAL
INFORMATION-ATTORNEYS EYES ONLY information to provide such
assistance, and who are not employed by, or an agent or representative for, the
Receiving Party, nor anticipated to become an employee, agent or representative of
the Receiving Party in the near future;
c. If necessary to promote alternative dispute resolution, any mediator or arbitrator (and
their assistants or staff) retained by the parties who needs access to the
CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY information to
assist the parties with resolving the claims of this Action;
d. Court reporters for depositions taken in this Action, including persons operating
video recording equipment and persons preparing transcripts of testimony; and
e. The court and its staff, any court reporter or typist recording or transcribing hearings
and testimony, and jurors.
6)
Dissemination by the Receiving Party. Counsel for the Receiving Party shall:
a. Require Qualified Recipients who are non-expert witnesses or expert witnesses and
consultants and who receive information designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY to review and agree to the terms of
this Protective Order and execute a copy of the Agreement attached hereto as
Appendix A before receiving confidential Discovery Material.
b. Instruct witnesses, consultants, and outside counsel who assist with case preparation
or represent a witness that disclosure of the information designated as
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY is
prohibited as set forth herein.
c. Maintain a list of any confidential Discovery Material disclosed and to whom, along
with the executed copies of the Appendix A Agreement.
The prohibition on disclosing information designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY exists and is enforceable by the court even if the
person receiving the information fails or refuses to sign the Appendix A Agreement.
7)
Duty as to Designations.
Each Producing Party that designates information or
items as CONFIDENTIAL and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY must exercise
reasonable care to limit any such designation to specific material that qualifies under the
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appropriate standards, and designate only those parts of material, documents, items, or oral or
written communications that qualify, so that other portions of the material, documents, items, or
communications for which protection is not warranted are not swept unjustifiably within the ambit
of this Order. Broadly described, indiscriminate, or routinized designations are prohibited.
8)
Limitations on Use. Confidential Discovery Material shall be used by the Receiving
Party only to prepare for and conduct proceedings herein and not for any business or other purpose
whatsoever.
9)
Maintaining Confidentiality. Discovery Material designated as “CONFIDENTIAL”
and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY shall be held in confidence by each
Qualified Recipient to whom it is disclosed, shall be used only for purposes of this action, and shall
not be disclosed to any person who is not a Qualified Recipient. Each party, each Qualified
Recipient, and all counsel representing any party, shall use their best efforts to maintain all
information designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES
ONLY in such a manner as to prevent access, even at a hearing or trial, by individuals who are not
Qualified Recipients. Nothing herein prevents disclosure beyond the terms of this Protective Order
if the party claiming confidentiality consents in writing to such disclosure.
10) Copies.
Discovery
Material
designated
as
“CONFIDENTIAL”
and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY shall not be copied or otherwise reproduced by
the Receiving Party, except for transmission to Qualified Recipients, without the written
permission of the Producing Party or, in the alternative, by order of the court. However, nothing
herein shall restrict a Qualified Recipient from loading confidential documents into document
review platforms or programs for the purposes of case or trial preparation or making working
copies, abstracts, digests, and analyses of information designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY under the terms of this Protective Order.
11) Docket Filings. All documents of any nature including, but not limited to, briefs,
motions, memoranda, transcripts, discovery responses, evidence, and the like that are filed with the
court for any purpose and that contain Discovery Material designated as “CONFIDENTIAL”
and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY shall be provisionally filed under
restricted access with the filing party’s motion for leave to file restricted access documents. A party
seeking to file Discovery Material under restricted access must comply with the court’s rules and
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electronic docketing procedures for filing such motions.
12) Depositions. The following procedures shall be followed at all depositions to protect
the
integrity
of
all
Discovery
Material
designated
as
“CONFIDENTIAL”
and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY:
a. Only Qualified Recipients may be present at a deposition in which such information
is disclosed or discussed.
b. All deposition testimony which discloses or discusses information designated as
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY is
likewise deemed designated as “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY.
c. Information designated as “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY may be used at a nonparty deposition only if necessary
to the testimony of the witness.
13) Challenges to Confidentiality Designations. A Receiving Party that questions the
Producing Party’s confidentiality designation will, as an initial step, contact the Producing Party
and confer in good faith to resolve the dispute. If the parties are unable to resolve the dispute
without court intervention, they shall schedule a conference call with the magistrate judge assigned
to the case before engaging in written motion practice. If a written motion and briefing are
necessary and the information in dispute must be reviewed by the court to resolve that motion, the
confidential information shall be filed under restricted access pursuant to the court’s electronic
docketing procedures. The party that produced the information designated as “CONFIDENTIAL”
and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY bears the burden of proving it was
properly designated. The party challenging a “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY designation must obtain a court order before disseminating the
information to anyone other than Qualified Recipients.
14) Use at Court Hearings and Trial. Subject to the Federal Rules of Evidence, Discovery
Material designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES
ONLY may be offered and received into evidence at trial or at any hearing or oral argument. A
party agreeing to the entry of this order does not thereby waive the right to object to the
admissibility of the material in any proceeding, including trial. Any party may move the court for
an order that Discovery Material designated as “CONFIDENTIAL” and/or CONFIDENTIAL-7
ATTORNEYS' EYES ONLY be reviewed in camera or under other conditions to prevent
unnecessary disclosure.
15) Return or Destruction of Documents. Upon final termination of this Action, including
all appeals, each party shall make reasonable efforts to destroy all Discovery Material designated
as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY. The destroying
party shall notify the producing party when destruction under this provision is complete. If a party
is unable to destroy all Discovery Material designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY, that material shall be returned to the Producing
Party or the Producing Party’s counsel. This Protective Order shall survive the final termination of
this action, and it shall be binding on the parties and their legal counsel in the future.
16) Modification. This Protective Order is entered without prejudice to the right of any
party to ask the court to order additional protective provisions, or to modify, relax or rescind any
restrictions imposed by this Protective Order when convenience or necessity requires. Disclosure
other than as provided for herein shall require the prior written consent of the Producing Party, or
a supplemental Protective Order of the court.
17) Additional Parties to Litigation. In the event additional parties are joined in this
action, they shall not have access to Discovery Material as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY until the newly joined party, by its counsel, has
executed and, at the request of any party, filed with the court, its agreement to be fully bound by
this Protective Order.
18) Sanctions.
a. Any party subject to the obligations of this order who is determined by the court to
have violated its terms may be subject to sanctions imposed by the court under Rule
37 of the Federal Rules of Civil Procedure and the court’s inherent power.
b. Confidentiality designations that are shown to be clearly unjustified or that have
been made for an improper purpose (e.g., to unnecessarily prolong or encumber the
case development process or to impose unnecessary expenses and burdens on other
parties) expose the designating party to sanctions. Upon discovering that
information was erroneously designated as CONFIDENTIAL and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY, the Producing Party shall
promptly notify all other Parties of the improper designation
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19) Inadvertent Disclosure of Protected Discovery Material.
a. A Producing Party that inadvertently fails to properly designate Discovery Material
as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY
shall have 14 days from discovering the oversight to correct that failure. Such failure
shall be corrected by providing written notice of the error to every Receiving Party.
b. Any Receiving Party notified that confidential Discovery Material was received
without the appropriate confidentiality designation as authorized under this order
shall make reasonable efforts to retrieve any such documents distributed to persons
who are not Qualified Recipients under this order, and as to Qualified Recipients,
shall exchange the undesignated or improperly designated documents with
documents that include the correct “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY designation.
20) Disclosure of Privileged or Work Product Discovery Material.
a. The production of attorney-client privileged, or work-product protected
electronically stored information (“ESI”) or paper documents, whether disclosed
inadvertently or otherwise, is not a waiver of the privilege or protection from
discovery in this case or in any other federal or state proceeding. This Protective
Order shall be interpreted to provide the maximum protection allowed by Federal
Rule of Evidence 502(d). Nothing contained herein is intended to or shall serve to
limit a party’s right to conduct a review of documents, ESI or information (including
metadata) for relevance, responsiveness and/or segregation of privileged and/or
protected information before production.
b. Any party who discloses documents that are privileged or otherwise immune from
discovery shall promptly upon discovery of such disclosure, advise the Receiving
Party and request that the documents be returned. The Receiving Party shall return
such produced documents or certify their destruction, including all copies, within 14
days of receiving such a written request. The party returning such produced
documents may thereafter seek re-production of any such documents pursuant to
applicable law.
Dated this 17th day of July, 2019.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHINA LIFE INSURANCE COMPANY, as
assignee of LERADO GROUP CO.,
LTD.; LERADO GROUP (HOLDING)
COMPANY LTD.; LERADO (ZHONG
SHAN) INDUSTRIAL CO., LTD.;
LERADO CHINA LIMITED; and
LERADO H.K. LIMITED;
8:18CV213
EXHIBIT A
Plaintiff/Counter-Defendant,
vs.
BABY TREND, INC.,
Defendant/Counter-Claimant.
I hereby acknowledge that I am about to receive Confidential Information supplied in
connection with the above-captioned case. I understand that such information is being provided to
me pursuant to the terms and restrictions of the Protective Order entered in this case. I have been
given a copy of the Protective Order, have read the Protective Order, and agree to be bound by its
terms. I understand that Confidential Information as defined in the Protective Order, or any notes
or other records that may be made regarding any such materials, shall not be disclosed to any
persons except as permitted by the Protective Order.
Printed Name
Signature
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